ЧАСТЬ 3

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II. THE "DIGITAL AGENDA" AND THE NEW TREATIES

During the post-TRIPs period of the preparatory work, it became clear that the most important and most urgent task of the WIPO committees, and the eventual diplomatic conference, is to offer clarifications of the existing norms and, where necessary, create new norms to respond to the problems raised by digital technology, and particularly by the Internet. The issues addressed in this context were referred to jointly as the "digital agenda" The provisions of the WCT and the WPPT relating to that "agenda" covers the following issues: certain definitions, rights applicable for the storage of works and objects of neighboring rights in digital systems, transmission of works and objects of neighboring rights in digital networks, limitations on and exceptions to rights in a digital environment, technological measures of protection and rights management information.

A. DEFlNITIONS

{15} See Records of the Diplomatic Conference on the International Protection of Performers, Producers of Phonograms and Broadcasting Organizations (WIPO publication, No. 326(E)).

{16} Concerning the role of agreed statements in the interpretation of international treaties, see Article 31(2) of the Vienna Convention on the Law of Treaties.

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The Berne Convention, in general, does not contain definitions, and the WCT follows this tradition. In the Berne Convention, the only real exception is the definition of "published work" in Article 3(3). It was in connection with that definition that the draft of the WCT included an interpretative provision. It was not, however, adopted. The reason why it is still discussed later in this paper is that it had a specific relation with the question of applicability of the right of distribution for digital transmissions.

The WPPT, however, follows the structure of the Rome Convention, and it contains, in its Article 2, a series of definitions. The definitions cover more or less the same terms as those which are defined in Article 3 of the Rome Convention: "performers," "phonogram," "producer of phonograms," "publication," "broadcasting"; more, in the sense that the WPI'T also defines "fixation" and "communication to the public," and less, in the sense that it does not define "reproduction" and "rebroadcasting."

The impact of digital technology is present in the definitions on the basis of the recognition that phonograms do not necessarily mean the fixation of sounds of a performance or other sounds any more: now they may also include fixations of (digital) representations of sounds that have never existed, but that have been directly generated by electronic means. The reference to such possible fixations appears in the definitions of "phonogram," "fixation," "producer of phonogram," "broadcasting" and "communication to the public." It should be stressed, however, that the reference to "representations of sounds" does not expand the relevant definitions as provided under existing treaties; it only reflects the desire to offer a clarification in the face of present technology.

B. 7-UP - 7-DOWN; THE SCOPE OF THE RIGHT OF REPRODUCTION

The texts of the two treaties and of the agreed statements related to them were agreed upon during a series of informal consultation meetings of Main Committee I held during the third week of the Conference.

When somebody left the conference room where the negotiations took place, he or she was attacked by journalists and lobbyists who wanted to obtain information on what was going on inside. In general, their first question was this: "What about 7?" This referred to Article 7 of the draft of the WCT and Article7 of the draft of the WPPT. In the draft texts, those articles contained provisions to clarify the scope of application of the right of reproduction, but this is not the case anymore in the texts of the two treaties as adopted.

Those provisions turned out to be the most controversial ones in the two draft treaties, and an enormous amount of time was spent on discussing them.

Thus, 7 became a magic number, and those lobbyists who were against the provisions included in the two Articles 7 even swore - referring to 7-up, the well-known soft drink - that, if those provisions were not adopted, they, as an act of thanksgiving, would introduce a new drink: 7-down.

The issues covered in those draft provisions mainly related to the fact that, during transmissions in digital networks, a series of reproductions take place and that the on-demand use of works and objects of neighboring rights (even "browsing") involves the making of at least temporary copies in the receiving computers.

Article 7(1) of the draft of the WCT contained the following clarification: "The exclusive right accorded to authors of literary and artistic works in Article 9(1) of the

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Berne Convention of authorizing the reproduction of their works shall include direct and indirect reproduction of their works, whether permanent or temporary, in any manner or form." Article 7(1) of the draft of the WPI"T included a similar provision: "Performers shall enjoy the exclusive right of authorizing the direct or indirect reproduction, whether permanent or temporary, of their [Alternative A: musical performances fixed in phonograms,] [Alternative B: performances fixed in any medium,] in any manner or form." Article 14 of the WPPT contained essentially the same provision concerning phonograms.{17}

Paragraph (2) of all the three articles, subject to the relevant general provisions on limitations and exceptions,{18} provided for the possibility of specific limitations "in cases where a temporary reproduction has the sole purpose of making the [work] [performance] [phonogram] [perceptible] [audible] or where the reproduction{19} is of a transient or incidental nature, provided that such reproduction takes place in the course of use of the [work] [performance] [phonogram] that is authorized by the [author] [performer] [producer of phonograms] or permitted by law."{20}

The fact that the storage of works in electronic memories is an act of reproduction has been recognized - and has never been questioned - for a long time. It was as early as June 1982 that the Second WIPO/UNESCO Committee of Governmental Experts on Copyright Problems Arising from the Use of Computers for Access to or the Creation of Works clarified this as part of a set of recommendations. The relevant recommendation reads as follows: "Storage in and retrieval from computer systems (input and output) of protected works may, as the case may be, involve at least the following rights of authors provided for in either international conventions or national legislation on copyright or both: ... (b) the right to reproduce any work involved :.{21}

The questions which emerged in respect to the scope of reproduction in a digital environment did not, actually, concern storage in electronic form in general, but only certain kinds of storage, namely those transient and incidental forms of temporary reproduction which are mentioned in paragraph (2) of each of the three above-mentioned articles. It was believed by some that such reproductions should not he covered by the operation of the exclusive right of authorizing reproduction.

During the preparatory work, three schools of thought emerged concerning the operation of the right of reproduction in respect to such transient and incidental reproductions. The followers of the first school were of the view that no specific limitations or exceptions were needed, since the flexibility of the general provisions on

{17} For the draft of the WCT see WIPO document CRNR/DC/4, and for the draft of the WPPT, see WIPO document CRNR/DC/5.

{18} In this respect, reference was made, in Article 7(2) of the draft of the WCT, to Article 9(2) of the Berne Convention, and, in Articles 7(2) and 14(2) of the draft of the WPPT, to the provisions of the draft treaty on limitations and exceptions (Articles 13(2) and 20(2)).

{19} It is to be noted that here the word "reproduction" means "temporary reproduction" mentioned in the preceding part of the provision. That is, what follows after this word concerning transient and incidental reproduction relates to temporary reproduction.

{20} The expression "permitted by law," of course, should not he interpreted outside the context of the WCT and the WPPT. It obviously does not suggest that any use may he permitted by a national law; national laws of Contracting Parties may only permit a use (instead of the owner of right) in those cases where the provisions of the WCT and WPPT concerning limitations and exceptions offer such a possibility for them.

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{21} See COPYRIGT (monthly review of WIPO), Sept 1982, at 245-246..

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limitations and exceptions (based on the three-step test established by Article 9(2) of the Berne Convention) provided a sufficient legal framework. According to the second school, any "too much" transient and incidental reproduction simply should be excluded from the definition of "reproduction." It was, however, pointed out that, first, to exclude some reproduction on the basis of the duration of reproduction, would be a very subjective exercise (what should he the limit: some hours, some minutes, some seconds, some nanoseconds?), and, second, that, as long as the acts involved correspond to the concept of reproduction, the exclusion of such acts from that concept would conflict with Article 9(1) of the Berne Convention, which clearly covers reproduction "in any manner or form." Therefore, quite naturally, a third school gained more support, namely that no temporary reproduction should be - because it cannot be - excluded from the definition of "reproduction," but that appropriate limitations on the right of reproduction should he made possible in respect to certain transient and incidental reproduction where this is justified{22} The above-quoted provisions in the draft treaties followed the latter idea.

Of course, there is an inevitable question we should respond to if we speak about the concept of reproduction, namely how we can actually describe that concept. The Berne Convention does not offer a specific definition, but the records of the various diplomatic conferences make it clear that fixation of a work is the basic element of the concept.{23} With this, however, still nothing is truly settled since then the next inevitable question is what "fixation" is. Fortunately, in respect to that, there seems to be a quite well-established position at the international level: fixation means sufficient stability of form so that what is "fixed" may be perceived, reproduced or otherwise communicated. A statement about this is also included in the report of the WIPO/UNESCO Committee of Governmental Experts quoted above. The report clarifies that "sufficient stability of a form in which a work is fixed should be considered from the functional side, in the sense that the work can be perceived, reproduced or otherwise communicated to the public with the aid of a computer system."{24}

It is interesting to note in this context that, under Article 2(c) of the WPPT, "fixation" means "the embodiment of sounds, or of the representation thereof, from which they can be perceived, reproduced or communicated through a device." This indicates that the Diplomatic Conference has also recognized the above-mentioned basic elements of the concept of "fixation," and, through it, the concept of reproduction.

It is hardly questionable that, in general, even transient and incidental storage of works and objects of neighboring rights in an electronic memory corresponds to these concepts since they are sufficiently stable so that, on the basis of them, the works and objects of neighboring rights stored may be perceived, further reproduced or further communicated. Thus, it seemed appropriate to use the system of limitations and exceptions (subject to the "three-step test" discussed below) where the application of the right of reproduction was not considered to be justified in the case of such temporary

{22} Se also Mihaly Ficsor, International Harmonization of Copyright in Preparation of the Digital Age in PROC. OF THE INT'L CONF. ON COPYRIGHT & RELAIED RTS. ON THE THRESHOLD OF THE 21 CENTURY (European Comm'n publication) 52-54 (1996).

{23}For a more detailed description about this, see item 8.10 of Ricketson, supra note 3, at 373-374.

{24} Paragraph 33 of the report, supra note 21 at 242.

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storage, rather than trying to exclude such reproduction from the concept of "reproduction." Nevertheless, the Diplomatic Conference did not adopt the infamous Articles 7 of the two treaties and Article 14 of the WPPT. There were delegations which supported those provisions, there were some others which were in favor of excluding transient and incidental reproduction from the concept of reproduction, and there were also some delegations which, in principle, would have been ready to accept the above-mentioned provisions, with the important difference, however, that the application of the limitations mentioned in paragraph (2) of each of the three articles should not be only a possibility left to Contracting States, but that it should rather be an obligation of Contracting States.{25} Finally, the Diplomatic Conference was unable to reach agreement on those provisions and the three articles were left out from the text of the treaties. Thus, that school prevailed which was against the introduction of specific limitations or exceptions.

At the same time, the Diplomatic Conference adopted an agreed statement which reads as follows: "The reproduction right, as set out in Article 9 of the Berne Convention, and the exceptions permitted thereunder, fully apply in the digital environment, in particular to the use of works in digital form. It is understood that the storage of a protected work in digital form in an electronic medium constitutes a reproduction within the meaning of Article 9 of the Berne Convention." A similar agreed statement was adopted also concerning the WPPT.

The first sentence of the agreed statement was adopted by consensus. It follows from that first sentence that Article 9(1) of the Convention is fully applicable. This means that the concept of reproduction under Article 9(1) of the Convention, which extends to reproduction "in any manner of form," must not be restricted just because a reproduction is in digital form, through storage in an electronic memory, or just because a reproduction is of a temporary nature. At the same time, it also follows from that sentence that Article 9(2) of the Convention is fully applicable, which offers an appropriate basis to introduce any justified exceptions in the above-mentioned cases of transient and incidental reproductions in national legislation, in harmony with the "three-step test" provided for in that provision of the Convention.

The second sentence of the agreed statement was not adopted unanimously (but by a majority of the votes, which was actually much larger than the two-third majority required for the adoption of the text of the Treaty itself).{26} Nevertheless, the validity of

(25} The minutes of the Diplomatic Conference will reflect the discussion about this. The latter idea, that, in this field, limitations be obligatory, came from the group of African countries and it is also reflected in the document containing the report of the consultation meeting of those countries held in Casablanca in November 1996, made available to the participants in the Diplomatic Conference. The main argument for the proposal was that the Internet is a global network, and, therefore, it would create a problem if national laws differed in respect to the regulation of the issue of temporary storage in the digital transmissions. It should he noted, however, that such a provision in itself would not have achieved the desired legal uniformity, and this is not only because still many other aspects of digital transmissions - particularly the issue of whether the right of communication to the public or the right of distribution should be the "partner" of the right of reproduction - would not have been settled yet, but also because national laws differ in a number of other important dimensions, such as the coverage of protection (for example, due to the differing levels of originality texts), the duration of protection, the original ownership of rights, the transferability of rights and so on.

{26} The result of the vote at the Plenary was the following: in respect to the statement concerning the WCT, in favor, 51, against, 5, abstentions, 30, and, in respect to the WPPT, in favor, 47, against, 4, abstentions, 31.

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what is included in that sentence, for the reasons explained above, could hardly be questioned.